Executive Summary

This submission raises issues about the experiences of NDIS participants at the Administrative Appeal Tribunal (AAT), specifically in relation to both the conduct of the National Disability Insurance Agency (NDIA) and the procedures of the Tribunal itself.

In context of unprecedented levels of external reviews to the AAT, we have seen a shift in the behaviour of the NDIA and their representatives. Often this fight is an unfair battle, as unrepresented individuals are confronted with adversarial behaviours from the agency and their legal representatives. The NDIA disproportionately holds the power, the resources, and is under no time pressure. To the contrary, the individual often has necessary disability supports withheld from them and little or no capacity to negotiate. (Section 1)

The NDIA’s model litigant obligations should ameliorate these issues. It provides a framework that requires government agencies to act fairly, ethically, and honestly to model best practice in litigation. The conduct of the NDIA often falls well short of adhering to these guidelines, resulting in unnecessary distress for PWD and their families, as well as placing some PWD at significant risk. (Section 2)

The AAT also has guidelines for conduct of external appeals, which the NDIA frequently fails to comply with. (Section 3)

Advocates have attempted to raise issues with the conduct of the NDIA’s representatives at the AAT, especially in the context of external lawyers acting on behalf of the Agency, in ways which do not align with the conduct expected of a government agency with “no private or self-interest of its own”, but have found that this process often also falls short of expectations. (Section 4)

The Tribunal itself has also at times made decisions about how these matters will be conducted, which we believe should be reviewed for appropriateness. (Section 5)

We offer a set of recommendations for improvement across the entire process of decision making and review, so that NDIS participants can regain a Scheme whose entire purpose was to provide them with support.

the full report is available for download from https://advocacytasmania.org.au/wp-content/uploads/2022/06/Model-litigant-obligations-and-NDIS-Appeals-Final-version-7.6.22.pdf